Austin Personal Injury Lawyer - Tort Reform

More Tort Reform Heroes

Brooks Schuelke — Fri, 08 May 2009 17:12:17 GMT

Yesterday I wrote about the exploits of Dr. Robert Zaleksi, one of the faces of the famous West Virginia doctor strike. But Dr. Zaleski is not alone in his hypocrisy. A lot of the hyprocisy was present during Dr. Zaleski's walkout.

After the Bush Administration kicked off its war on trial lawyers, Congressional Republicans started holding hearings on the medical malpractice crises. West Viriginia Representative Shelley Moore Capito proudly introduced Dr. Samuel Roberts to testify that the problems he was having with excessive malpractice insurance might force him to leave the practice. Somehow, Dr. Roberts forgot to tell the committee that in 1987 he had pleaded guilty to five counts of cocaine possession and was sentenced to five years' probation.

During the same strike, Dr. Rajai Khoury was quoted on television as saying "we're hurting, our patients are hurting, the community is suffering." Dr. Khoury forgot to mention that, despite being sued several times, he lived in a 12,000 square foot, five car garage home. I'm not sure of Dr. Khoury's definition of "hurting," but that doesn't meet mine.

Even the organizers of the strike weren't immune to the lies and half-truths. The West Virginia Medical Society held a rally and set out 37 chairs to represent doctors who supposedly were forced out of practice because of insurance costs. A local reporter, however, actually did an investigation of the allegations and found that at least two of the doctors weren't practicing, not because of insurance, but because they were dead.

These stories rarely come to light in the popular press, but they're well-chronicled in Stephanie Mencimer's book, Blocking the Courthouse Door, which I encourage everyone to read. It's one of the few books that really looks into the stories and shows the real truth (or lack thereof) behind tort reform.

Originally posted at InjuryBoard by Brooks Schuelke

Tort Reform Heroes: Dr. Robert Zaleski

Brooks Schuelke — Thu, 07 May 2009 18:21:12 GMT

One of my favorite books is Stephanie Mencimer's Blocking the Courthouse Door --- How the Republican Party and Its Corporate Allies Are Taking Away Your Right To Sue. It's not one of my favorites just because Stephanie features one of our cases in the book; instead, it's one of my favorites because she does what few who write on tort reform actually do --- research the subject. Too often, we see journalists who are all too willing to write about cases that don't actually exist or are taken out of context. But Stephanie does a great job of actually looking at the substance of the issues.

In one chapter of her book, Stephanie writes about today's "tort reform hero," Dr. Robert Zaleski.

If you have watched the tort reform debate, you might remember an uproar in 2003 when West Virginia doctors walked off the job to protest high malpractice insurance rates. One of the key doctors was Dr. Robert Zaleski. Dr. Zaleski became one of the stars of the movement, showing up on talk shows, CNN, and in the New York Times Magazine. Dr. Zaleski was even invited to attend a speech that President Bush gave in Scranton, Pennsylvania, where he talked about out of control lawsuits threatening patient care.

But Stephanie thinks she found why Dr. Zaleski's malpractice premiums might have been so high. It turns out that in a six year period, Dr. Zaleski had been sued fourteen times, with eight of the cases settling for total payouts of $1.7 million. And in one deposition, Dr. Zaleski admitted that he was addicted to pain medication for a substantial part of the time he was operating on people in the early 1980s. There were also allegations that in order to feed his drug habit, Dr. Zaleski wrote prescriptions for other drug addicts, who allegedly filled them and then kicked back some of the profits to the doctor.

Unfortunately, at the time, no journalists were willing to do the research on the Dr. Zaleskis of the world, and these tort reform heroes and their half-truth stories were able to start the tort reform train running.

Over the next few weeks, I'll look at other issues of tort reform and the half-truths behind them.

Originally posted at InjuryBoard by Brooks Schuelke

Another Week and Another Article About Texas' Medical Malpractice Caps Not Working

Brooks Schuelke — Tue, 21 Apr 2009 10:09:35 GMT

Last week, I wrote about a study that found that Texas' medical malpractice caps discriminate against the retired and the unemployed. Today, the Dallas Morning News had an article looking at another aspect of medical malpractice reform: whether the reform is leading to reduce health care costs, one of the promises used to convince Texans to amend our constitution to enact the caps.

Not surprising, the article concludes that the caps have not reduced costs for consumers. The article notes that both health insurance costs and Medicare expenses, a guide to health care costs, have continued to increase rapidly. And Texas isn't alone. A December University of Alabama study looked at 27 states (including Texas) that had enacted tort reform measures, and the study concluded "tort reforms have not led to health care cost savings for consumers."

Despite the mounting evidence, we continue to hear the cries from big business and insurance companies that we need more regulation. We're just over 1/2 way through the legislative session, and there continues to be a push to limit consumers' rights. I just hope that this time the legislators will look at the evidence and not allow the wool to be pulled over their eyes.

Originally posted at InjuryBoard by Brooks Schuelke

Texas' Medical Malpractice Reforms Are Discriminating

Brooks Schuelke — Wed, 15 Apr 2009 10:14:19 GMT

In 2003, our medical malpractice reforms capped the amount of non-economic damages that plaintiffs could recover. There were predictions that the cap would be unfair, and there have been anecdotal stories relating to the caps' discriminatory effect, but now, four law professors (including three from the University of Texas school of law, my alma mater) released a study confirming the discriminatory effects of the caps.

The professors looked at how the cap was applied to jury verdicts across the state. The results are stunning. In cases won by the plaintiff, the damages were reduced by the caps in 47% of the cases. Jury verdicts are supposed to be protected. The jurors are the ones that see the evidence, see the victims and get a first hand look at how the malpractice has impacted the victims. The jurors are in the best position to truly determine the plaintiff's loss. And, unfortunately, in almost half the cases where the jury finds that the doctor was negligent, the caps mean that the plaintiff isn't being fully compensated for his or her loss.

And just as feared, the caps have a disproportionate effect on cases brought by the unemployed, the deceased and the elderly because these groups don't have lost wages (economic damages) to prop up their claims.

But I think the study may miss the most discriminatory effect that the caps have, and that's the weeding out of meritorious cases brought by these victims because the cases aren't economically viable. In cases involving a death, the elderly, children and the unemployed, the damages are almost always limited to non-economic damages. It is almost impossible to make these cases work economically. In such a situation, the attorneys are likely being asked to spend $80,000 - $100,000 of their own money (a fairly conservative amount for what it costs to work up a good medical malpractice case) when the best that they can hope for is recovering $100,000 in fees (40% of the $250,000 cap). Add in the difficult nature of medical malpractice claims, and good plaintiff's lawyers have to turn down almost all medical malpractice cases brought by the unemployed or the elderly. (There would probably be better odds in Vegas than what the caps create in these situations.)

Unfortunately, it looks the caps are here to stay, and consumers will continue to get the short end of the stick.

Originally posted at InjuryBoard by Brooks Schuelke

Texas Two Step --- Tort Reform Style

Brooks Schuelke — Mon, 23 Feb 2009 13:48:13 GMT

I'm sorry for my prolonged absence, but the practice of law has stepped in the way of my blogging. Not only have we had the usual business going on, but I was set to start a trial today in a small case. Finally, the adjuster just about doubled her offer last Friday afternoon around 4:30, and we got the thing resolved. But getting ready for trial is kind of like grocery shopping --- no matter the amount of groceries you're buying or the size of the case, it still takes a lot of the same work to get down to the store or the courthouse.

Add in the fact that a new legislative session has started and we're trying to stay on top of tort reform fires, time has just been short.

Fortunately, Steve Lombardi has been taking up my slack, and he has a great post on a horrific Texas medical malpractice case where the plaintiff was a victim of our tort reform era cap on non-economic damages. I can't say anything about it near as eloquently as Lombardi so I urge you to click on the link to read his post.

Originally posted at InjuryBoard by Brooks Schuelke

George Will and "Litigation Nation" Got It Wrong

Brooks Schuelke — Tue, 13 Jan 2009 09:41:00 GMT

Even though he and I don’t agree politically, I generally like George Will. In fact, I even did a school report on his book, The Morning After. But his agreement in Sunday’s piece Litigation Nation, agreeing with Phillip Howard’s Life Without Lawyers: Liberating Americans From Too Much Law, is wrong.

In a utopian society, maybe those of us that represent plaintiffs in personal injury or commercial litigation cases might not be needed. But this isn’t a utopian society. This is a country where:

1. 100,000 Americans die each year from medical errors, and we lose $100 billion due to prescription errors;

2. Tens of thousands of Americans die annually in alcohol-impaired driving crashes and drivers engage in other dangerous activities such as texting while driving;

3. Accountants, trust officers, attorneys and other fiduciaries continue to steal money from their clients; and

4. Pharmaceutical companies continue to commit fraud.

I would think that in the age of Enron, Worldcom, stories of widespread mortgage fraud, and Bernie Madoff, people would be running away from a system of caveat emptor; not running toward it. The sad fact is that this country needs lawyers and the civil justice system. It is no coincidence that James Madison said, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Now, are there frivolous lawsuits that shouldn’t be brought? Sure. But there are also frivolous defense — when defendants or their insurers assert ridiculous defenses to try and avoid paying legitimate claims. Both are byproducts of a critical system, and the system allows judges to sanction those claims if the judges hearing the cases are willing to do so.

And are there overreactions with ridiculous warnings or rules trying to limit suits? Sure (who doesn't think that a products claim brought by someone swallowing a fishhook wouldn't be thrown out?). But don't throw the baby out with the bathwater. Fault doesn't necessarily lie with the civil justice system, but with those assigned with trying to figure out how to respond to claims. While the school officials at Broward County chose to ban running at recess (as Will mentions), there are thousands of schools across the country where children are allowed to run free and play on fully functioning playgrounds during recess. Is a bone-headed decision by a school district an indictment of the civil justice system or of the school district making the decision?

I’ll also add that readers should be cautious about reading stories, such as Will's, based on anecdotes alone. In my experience, there are always two sides to an anecdote or even instances where the anecdote never happened (see the common Stella Awards). For instance, Will mentions a seemingly frivolous lawsuit that was settled for $90,000.00. I don’t find a lot of defendants throwing $90,000.00 at frivolous claims. Will also mentions a claim by a child that broke his leg sliding down a slide head-first. Frankly, I’m not sure how that could happen absent some additional facts that might explain why a claim was made.

For an in depth look at Will's anecdote of a supposed run-a-way jury, read Maxwell Kennerly's blog post.

Originally posted at InjuryBoard by Brooks Schuelke

Made in America: Corporate Gall

Brooks Schuelke — Mon, 22 Dec 2008 14:32:14 GMT

This weekend, CBS News legal analyst (and attorney) Andrew Cohen wrote a brilliant opinion piece chastising the U.S. Chamber of Commerce for its increasing efforts to limit the rights of victims. In the piece, Cohen writes:

Like the child who kills his parents and then begs for mercy because he is an orphan, the U.S. Chamber of Commerce now is begging President-elect Barack Obama to protect corporate interests in the nation’s civil litigation system as a way of restoring jobs and bolstering an economy shattered largely (as we now know) by corporate greed and misfeasance.

Talk about your gall.

Here is what the president of the Chamber’s legal arm wrote in an open letter to Obama: “We understand the critical necessity of revitalizing the economy by restoring American jobs, encouraging the growth of U.S. businesses, and protecting the savings and investments of millions of Americans. However, we are concerned that the potential expansion of legal liability significantly impairs these much needed steps toward a national recovery.”

The quote may be roughly translated this way: “Now that corporate America has helped screw everything up and led us into the greatest economic crisis since the Depression, we need to make sure that corporate America isn’t aggressively punished for its misdeeds or legitimately thwarted from misdoing them again.”

This is either an astonishing hypocrisy - Is corporate America unaware that the rest of us are in on the secret of the causes of the recession? - or the clearest indication there can be that Big Business is, always has been, and always will be about protecting Big Business.

I encourage everyone to take three minutes to read the entire text of Made in America: Corporate Gall.

Originally posted at InjuryBoard by Brooks Schuelke

US Chamber of Commerce Again Paints Misleading Picture of Tort "Reform"

Brooks Schuelke — Sat, 26 Apr 2008 08:54:00 GMT

Earlier this week, the US Chamber of Commerce published its annual Lawsuit Climate report, ranking all 50 states for their lawsuit climate. Texas comes in at number 41. While this report seems to be getting a lot of press, few articles have really analyzed it. After spending a little time looking at it, I have three big concerns with the report. First, the methodology is simply ridiculous. The study is simply a survey of general counsel attorneys for companies earning $100 million or more per year and simply asks their opinions about various states. It's not based on any study of tort reform initiatives, any survey of jury verdicts, any survey of statistics showing the number of times plaintiffs or defendants prevailed in cases. It's just not a study --- it's merely opinion based on perception.

Second, the perception and the issuance has a goal. The executive summary of the report concedes:

as we have noted in the past, perception does become linked with reality. If the states can change the way litigators and others perceive their liability systems, we may find considerable movement in their rankings in the future. Once these perceptions change, the overall business environment may be deemed more hospitable as well.

The Chamber hopes that if they keep repeating to Texans that we have a poor tort climate that people will start believing it. Nevermind the facts of our tort reform, the facts showing that defendants prevail in the Texas Supreme Court almost 90% of the time, or the facts showing jury verdicts going down.

Third, I think the study itself shows how the general counsel interviewed are out of touch with the litigation scene. When asked what reforms they'd like to see in the system, the number one response from the respondents was "speeding up the trial process." In my extensive time doing this, it's been my experience that plaintiffs are pushing for a quick trial, and that big business and insurance companies are the ones using whatever tactics necessary to slow the case down.

For more information, Donald Caminiti, another Injuryboard member, has also written about this.

Originally posted at InjuryBoard by Brooks Schuelke

Did Merck Ghostwrite Vioxx Studies For Doctors? And Why Is That Important To Personal Injury Lawyers?

Schuelke Schuelke — Wed, 16 Apr 2008 09:58:30 GMT

According to an article published yesterday by the Journal of American Medical Association, Merck was ghostwriting Vioxx studies for doctors. The study's authors reviewed over 20,000 pages of drafts reports of studies and came to the conclusion that:

When publishing their own clinical trials (designed, conducted,and sponsored by Merck), documents were found describing Merckscientists often working to prepare manuscripts and subsequentlyrecruiting external, academically affiliated investigators tocollaborate on the manuscript as guest authors.

But the authors state that Merck may not be alone in this practice:

We cannot determineif the authorship pattern we observed for clinical trial andreview articles related to rofecoxib also would be observedin articles describing other Merck products or the productsof other pharmaceutical companies. However, given the reportedprevalence of guest authorship and ghostwriting among the mostprestigious medical journals and that similar authorshippatterns were identified using documents produced during litigationsurrounding both gabapentin and sertraline, iit is reasonableto expect that the authorship practices observed in this casestudy may be used by other pharmaceutical companies as well.

On its face, this conduct is unacceptable. The World Association of Medical Editors has described this type of conduct as dishonest and unacceptable and stated that it erodes the ethical foundation of medicine and medical research.

But I think this story is significant to personal injury victims and trial lawyers for at least two non-obvious reasons. First, this study demonstrates the value of litigation, not only as regulation, but also as a check on unsubstantiated assertions of wrongdoers. The study was based on a review of studies and drafts of studies that were produced in the various Vioxx cases. In the absence of pharmaceutical litigation, these studies would never have been scrutinized and this type of story would never come to light. As the authors of the study wrote:

Nevertheless,access to industry documents through litigation presents a rareopportunity to explore the relationship between the medicalprofession and the pharmaceutical industry and has providedvaluable insights and findings in the past.

More importantly, this story is important in the tort "reform" debate. I have written about it time and time again, but this revelation is another indictment of the current administration's continued push for preemption of state laws. It is the administration's position that any drug that is approved by the FDA (or product approved by the CPSC, etc) should not be subject to lawsuits based on state law. At a time when articles are coming out weekly about the FDA's (or other governmental entity's) inability to regulate all of the drugs or products and with this revelation that pharmaceutical companies are likely misleading the government, it makes no sense to me to continue pushing for preemption.

For more on this story, you can read:

NYT: Merck Wrote Drug Studies For Doctors

Merck Press Release: Merck Responds to JAMA

Pharmalot: Vioxx Studies --- Ghostwriters and Merck Sponsorship

Oklahoma City Injuryboard: JAMA Editorial Blows Whistle On Drug Companies

WSJ Health Blog: Ghost of Vioxx Still Haunts Merck

UPDATE: Since my post, the following have posted good articles on this story:

Injuryboard national desk

Ethics for the Real World

Public Citizen's Citizen Vox

Originally posted at InjuryBoard by Schuelke Schuelke